The Extraordinary Ability petition is still considered an employment-based petition even without an employer-sponsor however, and immigrant visas are allotted in this category in the Employment-Based First Preference classification. The Extraordinary Ability petition may be sponsored by an employer and this may even strengthen the case in the eyes of U.S. Citizenship and Immigration Services, but such sponsorship simply is not required.

Of course, the Extraordinary Ability path shares another important trait with the other First Employment Based classifications (Outstanding Researcher and Multinational Executive or Manager) and with the Second Employment Based classification with a National Interest Waiver: the lack of a requirement that labor certification must first be completed before an Immigrant Visa Petition is filed with Citizenship and Immigration Services.

Q: If the Extraordinary Ability case can avoid the delays and difficulties of the labor certification process, why doesn't everyone use this method?

A: The Extraordinary Ability category requires an extremely impressive showing of abilities and accomplishments in the chosen field for approval, and therefore is not suitable for everyone. It is often more difficult for someone young and earlier on in their career to qualify (but not always!) This category is in many ways very much like the O-1 non-immigrant [temporary] visa .

One of the two methods of demonstrating eligibility for the Extraordinary Ability classification is to factually demonstrate that the foreign national meets at least three "tests" out of a list of ten - much like the O-1's requirement that three out of seven tests be met for those working in the sciences, education, business or athletics (or three out of eight for the arts).

Also like the O-1 non-immigrant category, only certain fields of endeavor are covered (although these are very general and a great many professions may be defined as being included in one of these fields).

However, to use the Extraordinary ability category to obtain permanent residence the foreign national must demonstrate both that he or she is entering the U.S. to continue work in the area of extraordinary ability which forms the basis for the petition, and that the foreign national's entry into the U.S. under this category will present a substantial prospective (future) benefit to the U.S.

Q: Does approval of an O-1 visa for a foreign national mean that they will automatically be eligible for an Employment-Based First Preference Extraordinary Ability case?

A: Not necessarily. Even though the criteria under which most extraordinary ability cases will qualify are similar to the O-1, U.S. Citizenship and Immigration Services takes the position that it need not approve a permanent Extraordinary Ability case just because a foreign national has been approved for an O-1 visa.

The standard is considered to be higher for a permanent case. We generally recommend that a foreign national on an O-1 wait a period of time after O-1 approval before attempting to apply for a permanent case, during which time the individual should make all efforts to accumulate more evidence of their achievements (awards, publications, etc.)

Q: What fields of employment are permissible for an EB-1 permanent Extraordinary Ability case?

A: A foreign national working in the fields of the sciences, arts, education, business, or athletics may apply in the Extraordinary Ability category if his or her achievements have been demonstrated by sustained national or international acclaim and have been recognized through extensive documentation.

Q: What are the possible tests and how does a foreign national demonstrate that he or she meets these tests?

A: There are two ways to demonstrate sustained national or international acclaim and recognition of the foreign national's achievements in the field of expertise.

One way - which applies to very, very few potential applications - is for the foreign national to have won a major internationally recognized award. Not just any international award will qualify; only one that is universally known and respected, such as the Nobel Prize, will be sufficient. If the foreign national has not won the Nobel Prize, perhaps a Pulitzer Prize, or something similar, Extraordinary Ability must be demonstrated using the other method.

The other way in which a foreign national's extraordinary ability can be demonstrated is by meeting at least three out of ten possible tests - not all of which are easily applicable to all fields. These include:

Receipt of lesser nationally or internationally recognized prizes or awards;

Evidence of original scientific, scholastic, artistic, athletic or business-related contributions of major significance;

Performance in a lead or critical role for organizations of major significance;

Membership in field-related organizations which require outstanding achievements of their members;

Published material about the person in major media or professional/trade publications;

Published scholarly material authored by the foreign national;

Participation as a judge of the work of others;

Participation in artistic exhibitions or showcases;

High salary or other remuneration for service rendered;

Commercial success in the performing arts.

In addition to meeting at least three of these tests, testimonials must generally be submitted from other recognized experts in the field attesting to the extraordinary achievements of the foreign national, the sustained national or international acclaim and recognition which the foreign national has received for these achievements, and often the specific ways in which the foreign national and his or her work meets one or more of the tests.

Q: Is it enough to prove that the foreign national meets at least three of the Extraordinary Ability tests? What’s this about “sustained national and international acclaim and recognition?”

A: Actually, meeting at least three of the tests is only a first step. There is an additional inquiry by USCIS after they determine that at least three of the Extraordinary Ability requirements have been met.

This is the result of a case known as “Kazarian” – formally, Kazarian v. USCIS, 2010 WL 725317 (9th Cir. 2010). Mr. Kazarian’s case had been denied although on paper he met at least three of the requirements. USCIS essentially said that although he technically did, his accomplishments weren’t really all that impressive and that congress wanted this category to be for the truly impressive when they created the law that permitted it.

The Kazarian decision said that USCIS was to examine whether at least three of the criteria were met or not…without determining how impressive these accomplishments actually were. However, the court referenced the concept of a “final merits determination” where the quality of a subject individual’s standing would be analyzed.

USCIS then interpreted this as a requirement that they needed, as part of adjudicating this type of petition, to perform a formal “final merits determination.” In other words, to decide whether the individual had received “sustained national or international acclaim” and whether the individual “is one of that small percentage who has risen to the very top of the field of endeavor” after they had determined that at least three of the original criteria had been met.

So, a petition submitted since the Kazarian ruling now needs to address both whether the individual meets at least three of the core criteria, and whether the individual has received sustained national or international acclaim/is one of that small percentage who has risen to the very top of the field of endeavor.

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The above is presented for informational purposes only, and does not constitute legal advice or create an attorney-client relationship with our firm. The information provided should not be used as guidance in pursuing an immigration matter absent consultation with a qualified immigration attorney.